EXHIBIT 4.47
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Execution Copy
COLLATERAL ASSIGNMENT OF EXCHANGE AGREEMENT
This Collateral Assignment Agreement (the "Assignment") is made and entered
into as of July 23, 2001 by and among Rental Car Finance Corp., a special
purpose Oklahoma corporation ("RCFC"), Dollar Rent A Car Systems, Inc., an
Oklahoma corporation ("Dollar"), Thrifty Rent-A-Car System, Inc., an Oklahoma
corporation ("Thrifty") and Bankers Trust Company, in its capacity as agent for
the Beneficiaries (such term and all other capitalized terms used herein and not
otherwise defined herein having the meanings assigned thereto in Section 1
hereof).
WHEREAS, RCFC is a party to that certain Master Exchange and Trust
Agreement, dated as of July 23, 2001 (the "Exchange Agreement"), by and among
RCFC, Dollar, Thrifty, Chicago Deferred Exchange Corporation ("CDEC"), VEXCO,
LLC, a Delaware limited liability company wholly owned by CDEC (the "Qualified
Intermediary") and The Chicago Trust Company, an Illinois trust company ("CTC").
WHEREAS, RCFC is a party to that certain Addendum, dated as of March 6,
2001 (the "Addendum") to the Amended and Restated Master Collateral Agency
Agreement, dated as of December 23, 1997 (the "Existing Agreement"), as the same
may be amended, supplemented, restated or otherwise modified from time to time
in accordance with the terms thereof, among Dollar Thrifty Automotive Group,
Inc., a Delaware corporation, as master servicer, RCFC, as a grantor, financing
source and beneficiary, Thrifty, as a grantor and servicer, Dollar, as a grantor
and servicer, various financing sources parties to the Existing Agreement,
various beneficiaries parties to the Existing Agreement and Bankers Trust
Company, not in its individual capacity but solely as Master Collateral Agent
(the "Master Collateral Agent").
WHEREAS, RCFC is a party to that certain Series 2001-1 Supplement, dated as
of March 6, 2001 (the "Supplement"), between RCFC and Bankers Trust Company, to
the Base Indenture, dated as of December 13, 1995, between RCFC and Bankers
Trust Company, as amended by the Amendment to Base Indenture, dated as of
December 23, 1997, between RCFC and Bankers Trust Company (the "Base
Indenture").
WHEREAS, the Addendum and Supplement require that this Assignment be
entered into prior to commencing the Exchange Program.
NOW THEREFORE, for good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meaning set forth therefor in the Addendum or if
not defined therein, in the Existing Agreement.
"Escrow Account" shall mean one or more segregated trust accounts that are
established in accordance with the terms of the Exchange Agreement and into
which are deposited the Exchange Proceeds and other funds with which to purchase
Replacement Vehicles.
"Exchange Proceeds" means as of any given time the sum of (i) the money or
other property from the sale of any Exchanged Vehicle that is held in an Escrow
Account as of such time; (ii) any interest or other amounts earned on the money
or other property from the sale of any Exchanged Vehicles that is held in an
Escrow Account as of such time; (iii) any amounts receivable from Eligible
Manufacturers and Eligible Vehicle Disposition Programs or from auctions,
dealers or other Persons on account of Exchanged Vehicles; (iv) the money or
other property from the sale of any Exchanged Vehicle held in the Master
Collateral Account for the benefit of the Qualified Intermediary as of such
time; and (v) any interest or other amounts earned on the money or other
property from the sale of any Exchanged Vehicle held in the Master Collateral
Account for the benefit of the Qualified Intermediary as of such time.
"Exchanged Vehicle" means a Group III Vehicle or other Vehicle subject to
the Existing Agreement that is transferred to the Qualified Intermediary in
accordance with the "safe harbor" provisions of Treasury Regulation ss.
1.1031(k)-1(g)(4) and pursuant to the procedures set forth in the Exchange
Agreement and thereby ceases to be a Group III Vehicle.
"Financed Vehicles" shall have the meaning set forth in the Base Indenture.
"Group III Collateral" shall have the meaning set forth in the Supplement.
"Identification Period" shall mean with respect to each Exchanged Vehicle
transferred, the period beginning on the date such Exchanged Vehicle is
transferred and ending at midnight on the 45th day thereafter, irrespective of
whether such day is a weekend day or a holiday.
"Relinquished Property Agreement" shall mean each agreement relating to the
sale or disposition of an Exchanged Vehicle, including but not limited to
agreements with any motor vehicle manufacturer, importer, distributor or other
supplier of vehicles.
"Replacement Property Agreement" shall mean each agreement relating to the
acquisition of a Replacement Vehicle.
"Replacement Vehicle" means a Vehicle acquired in exchange for an Exchanged
Vehicle in accordance with the terms of the Exchange Agreement and under Section
1031 of the Code and the Treasury regulations promulgated thereunder that will
constitute a Group III Vehicle or other Vehicle subject to the Existing
Agreement
"Series 2001-1 Rapid Amortization Period" shall have the meaning set forth
in the Supplement.
Section 2. Collateral Assignment.
(a) RCFC hereby assigns, pledges and grants a security interest in
all of RCFC's right, title and interest in, to and under the Exchange Agreement,
subject to the limitations on RCFC's right to receive, pledge, borrow or
otherwise obtain the benefits of the Exchange Proceeds contained in the "safe
harbor" provisions of Treasury Regulation xx.xx. 1.1031(k)-1(g)(4)(ii) and
1.1031(k)-1(g)(6) and in the Exchange Agreement, to the Master Collateral Agent
and the Master Collateral Agent hereby accepts such assignment, pledge and
grant, including the limitations, which the Master Collateral Agent hereby
acknowledges. To the extent the foregoing relates to Exchanged Vehicles, the
foregoing collateral shall be for the benefit of the Group III Series of Notes
(as such term is defined in the Supplement) and shall, together with any and all
proceeds, products, offspring, rents or profits of any and all of the foregoing,
be included in Group III Master Collateral (as such term is defined in the
Supplement).
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(b) Dollar hereby assigns, pledges and grants a security interest
in all of Dollar's rights, title and interest in, to and under the Exchange
Agreement with respect to Financed Vehicles, subject to the limitations on
Dollar's right to receive, pledge, borrow or otherwise obtain the benefits of
the Exchange Proceeds contained in the "safe harbor" provisions of Treasury
Regulation xx.xx. 1.1031(k)-1(g)(4)(ii) and 1.1031(k)-1(g)(6) and in the
Exchange Agreement, to the Master Collateral Agent and the Master Collateral
Agent hereby accepts such assignment, pledge and grant, including the
limitations, which the Master Collateral Agent hereby acknowledges. To the
extent the foregoing relates to Exchanged Vehicles, the foregoing collateral
shall be for the benefit of the Group III Series of Notes and shall, together
with any and all proceeds, products, offspring, rents or profits of any and all
of the foregoing, be included in Group III Master Collateral.
(c) Thrifty hereby assigns, pledges and grants a security interest
in all of Thrifty's rights, title and interest in, to and under the Exchange
Agreement with respect to Financed Vehicles, subject to the limitations on
Thrifty's right to receive, pledge, borrow or otherwise obtain the benefits of
the Exchange Proceeds contained in the "safe harbor" provisions of Treasury
Regulation xx.xx. 1.1031(k)-1(g)(4)(ii) and 1.1031(k)-1(g)(6) and in the
Exchange Agreement, to the Master Collateral Agent and the Master Collateral
Agent hereby accepts such assignment, pledge and grant, including the
limitations, which the Master Collateral Agent hereby acknowledges. To the
extent the foregoing relates to Exchanged Vehicles, the foregoing collateral
shall be for the benefit of the Group III Series of Notes and shall, together
with any and all proceeds, products, offspring, rents or profits of any and all
of the foregoing, be included in Group III Master Collateral.
Section 3. Representations and Covenants.
(a) RCFC hereby covenants nd agrees that (i) it shall comply with
the reporting requirements set forth in Section 4 of the Addendum and Section
4.20 of the Supplement, (ii) it shall report to the Master Collateral Agent the
balance of the amount of Exchange Proceeds as of a given date within one (1)
Business Day of the receipt by RCFC of a written request for such information
and (iii) it shall promptly deliver to the Qualified Intermediary each notice
contemplated to be delivered by it under Section 5.11 of the Exchange Agreement
if such notice relates to an Exchanged Vehicle.
(b) RCFC hereby covenants and agrees that during any Series 2001-1
Rapid Amortization Period, (i) the rights assigned to the Qualified Intermediary
under each Replacement Property Agreement and Relinquished Property Agreement to
which RCFC is a party shall be revoked and no further Group III Collateral shall
be transferred from the Master Collateral Account to an Escrow Account and (ii)
RCFC shall revoke the identification of all Replacement Vehicles to be acquired
in exchange for Exchanged Vehicles transferred by RCFC in cases where the
Identification Period for such Exchanged Vehicles does not end prior to the
first day of any Series 2001-1 Rapid Amortization Period. RCFC represents that
its performance of the covenants set forth in the first sentence of this Section
3(b) is consistent with RCFC's rights to the Exchange Proceeds under the
Exchange Agreement.
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(c ) Dollar hereby covenants and agrees that during any Series
2001-1 Rapid Amortization Period, (i) the rights assigned to the Qualified
Intermediary under each Replacement Property Agreement and Relinquished Property
Agreement to which Dollar is a party shall be revoked and no further Group III
Collateral shall be transferred from the Master Collateral Account to an Escrow
Account and (ii) Dollar shall revoke the identification of all Replacement
Vehicles to be acquired in exchange for Exchanged Vehicles transferred by Dollar
in cases where the Identification Period for such Exchanged Vehicles does not
end prior to the first day of any Series 2001-1 Rapid Amortization Period.
Dollar represents that its performance of the covenants set forth in the first
sentence of this Section 3(c) is consistent with Dollar's rights to the Exchange
Proceeds under the Exchange Agreement.
(d) Thrifty hereby covenants and agrees that during any Series
2001-1 Rapid Amortization Period, (i) the rights assigned to the Qualified
Intermediary under each Replacement Property Agreement and Relinquished Property
Agreement to which Thrifty is a party shall be revoked and no further Group III
Collateral shall be transferred from the Master Collateral Account to an Escrow
Account and (ii) Thrifty shall revoke the identification of all Replacement
Vehicles to be acquired in exchange for Exchanged Vehicles transferred by
Thrifty in cases where the Identification Period for such Exchanged Vehicles
does not end prior to the first day of any Series 2001-1 Rapid Amortization
Period. Thrifty represents that its performance of the covenants set forth in
the first sentence of this Section 3(d) is consistent with Thrifty's rights to
the Exchange Proceeds under the Exchange Agreement.
Section 4. Amendment to Exchange Agreement.
(a) RCFC hereby agrees that its rights under the Exchange Agreement
will not be modified without the prior written consent of the Master Collateral
Agent, provided, however, that the Master Collateral Agent hereby consents to
modifications to the following Exhibits to the Exchange Agreement: (i) Exhibit
2.2(d) (relating to the revocation of the assignment of a Relinquished Property
Agreement to the Qualified Intermediary); (ii) Exhibit 4.2(d) (relating to the
revocation of the assignment of a Replacement Property Agreement to the
Qualified Intermediary); Exhibit 5.2 (sets forth the names of the Escrow
Account); Exhibit 5.7 (sets forth notification information) and Exhibit 8.8
(sets forth notification information). Dollar hereby agrees that its rights
under the Exchange Agreement will not be modified without the prior written
consent of the Master Collateral Agent if such modification would cause the
representation set forth in the last sentence of Section 3(c) to be false.
Thrifty hereby agrees that its rights under the Exchange Agreement will not be
modified without the prior written consent of the Master Collateral Agent if
such modification would cause the representation set forth in the last sentence
of Section 3(d) to be false.
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(b) Each of RCFC, Dollar and Thrifty hereby severally (and not
jointly) agrees that (i) it will not agree to modify, amend or supplement the
Exchange Agreement in a manner which would adversely affect the interests of
AMBAC Assurance Corporation without the prior written consent of AMBAC Assurance
Company and (ii) a copy of any amendment, modification or supplement to the
Exchange Agreement will be provided to AMBAC Assurance Corporation at least ten
(10) days prior to the execution of any amendment, modification or supplement to
the Exchange Agreement, other than a modification, amendment or supplement to
the following Exhibits to the Exchange Agreement: (i) Exhibit 2.2(d) (relating
to the revocation of the assignment of a Relinquished Property Agreement to the
Qualified Intermediary); (ii) Exhibit 4.2(d) (relating to the revocation of the
assignment of a Replacement Property Agreement to the Qualified Intermediary);
Exhibit 5.2 (sets forth the names of the Escrow Account); Exhibit 5.7 (sets
forth notification information) and Exhibit 8.8 (sets forth notification
information).
Section 5. Severability. Any provision of this Assignment that is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 6. Counterparts. This Assignment may be executed in separate
counterparts and by the different parties on different counterparts, each of
which shall be an original and all of which taken together shall constitute one
and the same instrument.
Section 7. Binding Effect. This Assignment shall be binding upon and inure
to the benefit of each of the parties hereto, each Financing Source and
Beneficiary and their respective successors and assigns. Nothing herein is
intended or shall be construed to give any other Person any right, remedy or
claim under, to or in respect of this Assignment or the Group III Master
Collateral.
Section 8. Governing Law. This agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the state of New York,
without regard to conflict of laws principles.
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IN WITNESS WHEREOF, each party hereto has executed this Assignment
as of the day and year first above written.
RENTAL CAR FINANCE CORP.
By:
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Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
DOLLAR RENT A CAR SYSTEMS, INC.,
By:
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Name: Xxxxxxx X. XxXxxxx
Title: Treasurer
THRIFTY RENT-A-CAR SYSTEM, INC.,
By:
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Name: Xxxxxx X. Xxxx
Title: Treasurer
BANKERS TRUST COMPANY
By:
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Name:
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Title:
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